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Coming clean: Victoria's new environmental protection laws

17 October 2018

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Victoria’s environmental protection laws have finally been given a spruce up. The Environment Protection Amendment Act 2018(EPA Act 2018) which passed into law on 3 September 2018, replaces the Environment Protection Act 1970 (Vic), and overhauls the way the environment is regulated. The new laws are expected to take effect from 1 July 2020.

What does this mean for NFPs?

Managers of not-for-profits must be mindful that they may be held liable for environmental offences under these new laws. Individual volunteers, however, will not be considered to be conducting a business or undertaking and, therefore, will not be held liable.

Many organisations directly or indirectly cause impacts to their surrounds (air, noise, land, surface water, groundwater etc.), leading to pollution incidents or generating unnecessary waste. The new laws put a strong focus on prevention of harm. In other words, there will be a greater onus on organisations to do their due diligence, understand their obligations and assess the risks their activities to prevent harm to the environment.

Unlike the previous environmental regime, which aimed to penalise polluters (and only if they could be tracked down), the new laws appear to strike a better balance between prevention of harm and enforcement action. This means that as long as your organisation takes genuine steps to identify, risk assess, prevent or mitigate environmental risks from your activities, then your obligations would have been met. Organisations should review their activities to ensure they can demonstrate compliance.

The GED requires any persons (individuals or body corporates) engaging in any activity that may give rise to risks of harm to human health or the environment from pollution or waste to minimise those risks so far as reasonably practicable. A person commits an indictable offence or civil penalty if they breach the GED in the course of "conducting a business or undertaking". Thus, the concept of a person "conducting a business or undertaking" is relevant to the question of liability for an offence or a civil penalty for a contravention of the GED. The EPA Act 2018 gives a very broad definition of "business or undertaking". It applies to both activities for financial gain and not-for-profit activities, and thus may capture many not-for-profit organisations.

A person who is only engaging in a primarily private or domestic activity that is not conducted for profit or financial gain is "not conducting a business or undertaking" for the purposes of the legislation. However, private or domestic activity will be captured by the new offence of "aggravated breach of the GED", which applies to any person, not only a person conducting a business or undertaking.

This is the first Australian environment law that makes an environmental duty criminally enforceable.

The duty to notify is very important and will require careful consideration by organisations. It requires you to notify the EPA and respond as soon as practicable after you become aware or reasonably should have been aware of the occurrence of a pollution incident. For example, if your not-for-profit uses cleaning chemicals that are not disposed of properly, and perhaps find their way to the local creek, then you are under a positive obligation to take action to prevent any harm being caused to the local ecology and you must tell EPA about it.

A pollution incident is defined as an incident or set of circumstances that causes a leak, spill, or other unintended or unauthorised deposit or escape of a substance and as a result of which, pollution has occurred or is occurring. A pollution incident does not include noise emissions.

This is a ‘no fault duty’ – the organisation does not need to have contravened any particular legal provision to be responsible for responding and notifying.

The EPA is watching

EPA Victoria has been given greater powers to enforce the laws and penalties will increase significantly, particularly for aggravated offences in relation to material environmental harm. For example, the highest monetary penalty for an individual who contravenes the new laws is in excess of $300,000. For a body corporate it is over $1.6M. For intentional or reckless breaches, penalties may include up to 5 years imprisonment.

EPA Victoria officers will also have more investigative powers for breaches. They will be able to access search warrants and utilise modern surveillance techniques to collect evidence of bad behaviour.

Inclusion of community rights

Another way the EPA Act 2018 potentially impacts on community groups, particularly not-for-profit groups that operate in the environmental justice space, is the inclusion of third-party rights. It means community members who are "eligible persons" (a person whose interests are affected by the contravention or non-compliance of the environment protection laws) will be able to apply directly to court for civil orders restraining the breach of an environmental duty. The court will only give leave for a third-party application if it is in the public interest, and the applicant requested EPA Victoria to take action, but no action was taken within a reasonable time.

What can my NFP do?

Not-for-profits should expect to hear more about these laws in the coming months. Along with putting systems and processes in place to ensure compliance, organisations should prepare for the 2020 commencement of the new laws by harnessing their members’ intellectual energy to identify, assess and mitigate any environmental risks that may arise as part of their operations. A good starting point may be to create a Risk Register which includes a list of environmental risks and obligations.

You should expect little leniency from EPA Victoria, emboldened by the new laws. It’s up to you to understand your organisation’s risks and put plans in place to act practically, reasonably and responsibly.